English law

History

Originally, a writ was a letter or command from the Sovereign, or
from some person with appropriate jurisdiction. Early writs were
usually written in Latin, and royal writs were sealed with the
Great Seal. At a very early
stage in the English common law, a writ became necessary, in most
cases, to have a case heard in one of the Royal Courts, such as the
King's Bench or Common Pleas. Some franchise
courts, especially in the Counties
Palatine, had their own system of writs that often reflected or
anticipated the common law writs. The writ would act as a command
that the case be brought before the court issuing the writ, or it
might command some other act on the part of the recipient.

Where a plaintiff wished to have a case
heard by a local court, or by an Eyre if one happened to be visiting the
County, there would be no need to obtain a writ. Actions in local
courts could usually be started by an informal complaint, which did
not necessarily need to be written down.

However, if a plaintiff wished to avail himself of Royal — and by
implication superior — justice in one of the King's courts, then he
would need a writ, a command of the King, to enable him to do this.
Initially for common law, recourse to the
King's courts was unusual, and something for which a plaintiff
would have to pay. For most Royal Courts, the writ would usually
have been purchased from the Chancery, although the court of the
Exchequer, being in essence
another government department, was able to issue its own
writs.

While originally writs were exceptional, or at least non-routine
devices, Maitland suggests
that by the time of Henry II,
the use of writs had become a regular part of the system of royal
justice in England.

At first, new writs could be drafted to fit new situations,
although in practice the clerks of the Chancery would re-use old
forms, and there were many books that were collections of forms of
writ, much as in modern times lawyers frequently use fixed
precedents or boilerplate, rather than re-inventing the wording of
a legal document each time they wish to create one.

The problem with this approach was that the ability to create new
writs amounted to the ability to create new forms of action.
Plaintiffs' rights would be defined, and in most cases limited, by
the writs available to them. Thus, the ability to create new writs
was close to the ability to create new rights, a form of
legislation. Moreover, a writ, if one could be found fitting the
plaintiff's case, provided the legal means to remove the dispute
from the jurisdiction of the local court, often controlled by a
lesser noble, and instead have it heard by
the King's judges. The nobility thus saw the creation of new writs
as an erosion of their influence.

Over time, opposition to the creation of new writs by the Chancery
increased. For example, in 1256, a court was asked to quash a writ
as "novel, unheard of, and against reason" (Abbot of Lilleshall v
Harcourt (1256) 96 SS xxix 44). Ultimately, in 1258, the King was
forced to accept the Provisions of
Oxford, which prohibited, among other things, the creation of
new forms of writ without the sanction of the King's council. New writs were created after
that time, but only by the express sanction of Parliament, and the
forms of writ remained essentially static, each writ defining a
particular form of action.

With the abolition of the Forms of Action in 1832 and 1833, a
profusion of writs was no longer needed, and one uniform writ came
to be used. After 1852, the need to state the name of the form of
action was also abolished. In 1875, the form of writ was altered so
that it conformed more to the subpoena that
had been in use in the Chancery. A writ was a summons from the
Crown, to the parties to the action, with on its back the substance
of the action set out, together with a 'prayer' requesting a remedy
from the court (for example damages).

In 1980, the need for writs to be written in the name of the Crown
was ended. From that time, a writ simply required the parties to
appear.

Writs
applied to claims that were to be issued in one of the courts that
eventually formed a part of the High Court of Justice. The procedure in a County Court, which was established by statute,
was to issue a 'summons'.

In 1999 the Woolf Reforms unified most
of the procedure of the Supreme Court and the County Court in civil
matters. These reforms ushered in the Civil Procedure Rules. Under
these almost all civil actions, other than those connected with
insolvency, are now begun by the completion of a 'Claim Form' as
opposed to a 'Writ', 'Originating Application', or 'Summons': see
Rules 7 and 8 of the Civil Procedure Rules.

Dropping the writ

In some Westminster, and some
other parliamentary systems, the phrase
'dropping the writ' refers to the dissolution of government and the
beginning of an election campaign
to form a new House. This phrase derives from the fact that to hold
an election in a parliamentary system the government must issue a
writ of
election.

Private or domestic tribunals have always been outside the scope of
certiorari since their authority is derived solely from contract
that is from the agreement of the parties concerned.

The writ of habeas
corpus, usually used to test the legality of a
prisoner's detention, has expressly been preserved because it is
explicitly mentioned in the United States Constitution (thus, it
probably cannot be abolished except by constitutional amendment).
In the United States federal courts, the writ is most often used to
review the constitutionality of criminal convictions rendered by
state courts.

Some courts have held that in rare circumstances in a federal
criminal case, a United States district court may use the
common-law writ of error coram
nobis under the All Writs Act to set aside a
conviction when no other remedy is available.

Certain other writs are available in theory in the United States
federal courts but are almost never used in practice. In modern
times, the All Writs Act is most commonly used as authority for
federal courts to issue injunctions to
protect their jurisdiction or effectuate their judgments.

The situation in the courts of the various U.S. states varies from state to state but is
often similar to that in the federal courts. Some states continue
to use writ procedures, such as quo
warranto, that have been abolished as a procedural matter in
federal courts.

In an attempt to purge Latin from the language
of the law, California law has for
many years used the term writ of mandate in place of
writ of mandamus, and writ of review in place of
writ of certiorari. Early efforts to replace writ of
habeas corpus with writ of have the body never caught
on.

Other writs you may see:::

Writ of Bodily Attachment: A writ commanding law enforcement to
physically bring in a person in contempt of court. Evidently, you
cannot get out of this writ just by paying the fine, the court can
hold you up to 48 hours to meet with the person issuing the writ
directly.

Prerogative writs

The "prerogative" writs are a subset of the class of writs, those
that are to be heard ahead of any other cases on a court's docket
except other such writs. The most common of the other such
prerogative writs are habeas corpus, quo
warranto, prohibito, mandamus,
procedendo, and certiorari.

The due process for petitions for such writs is not simply civil or
criminal, because they incorporate the presumption of nonauthority,
so that the official who is the respondent has the burden to prove
his authority to do or not do something, failing which the court
has no discretion but to decide for the petitioner, who may be any
person, not just an interested party. In this they differ from a
motion in a civil process in which the burden of proof is on the
movant, and in which there can be an question of standing.

Indian law

Under the
Indian legal system, jurisdiction to issue 'prerogative writs' is given to the Supreme
Court, and to the High Courts of Judicature of all
Indian states. Parts of the
law relating to writs are set forth in the Constitution of India. The Supreme
Court, the highest in the country, may issue writs under Article 32
of the Constitution, while High Courts, the superior courts of the
States, may issue writs under Articles 226 and 227. 'Writ' is
eminently designed by the makers of the Constitution, and in the
same way it is developed very widely and efficiently by the courts
in India. The Constitution broadly provides for five kinds of
"prerogative" writs, namely, Habeas Corpus, Certiorari, Mandamus,
Quo Warranto and Prohibition. Basic details of which are as
follows:

The writ of
prohibition is issued by a higher court to a lower court
prohibiting it from taking up a case because it falls outside the
jurisdiction of the lower court. Thus, the higher court transfers
the case to itself.

The writ of habeas
corpus is issued to a detaining authority, ordering the
detainer to produce the detained person in the issuing court, along
with the cause of his or her detention. If the detention is found
to be illegal, the court issues an order to set the person
free.

The writ of
certiorari is issued to a lower court directing that the
record of a case be sent up for review, together with with all
supporting files, evidence and documents, usually with the
intention of overruling the judgement of the lower court. It is one
of the mechanisms by which the fundamental
rights of the citizens are upheld.

The writ of mandamus
is issued to a subordinate court, an officer of government, or a
corporation or other institution commanding the performance of
certain acts or duties.

The writ of quo
warranto is issued against a person who claims or usurps a
public office. Through this writ the court inquires 'by what
authority' the person supports his or her claim.

Other writs

A writ of attachment permits the arrest of a person or
the seizure of private property.

A writ of capias directs an officer to take into
custody the person named in the writ or order

A writ of elegit orders the seizure of a portion of a
debtor's lands and all his goods (except work animals) towards
satisfying a creditor, until the debt is paid off.

A writ of error is issued by an appellate court, and
directs a lower court of record to submit its record of the case
laid for appeal.

A writ of exigent (or exigend) commands a
sheriff to summon a defendant indicted for a felony, who had failed
to appear in court, to deliver himself up upon pain of outlawry or
forfeiture of his goods.

A writ of fieri facias commands a sheriff to take and
auction off enough property from a losing party to pay the debt
(plus interest and costs) owed by a judgment debtor.

A writ of mittimus orders either (1) a court to send
its record to another or (2) a jailor to receive the accused in his
or her custody at any point during the investigative or trial
process.

A writ of ne exeat restrains defendant who attempts to
flee the country where he or she is being tried.

A writ of praemunire instructs a sheriff to order
someone to appear in court to answer for any of a number of
different crimes.

A writ of supersedeas contains a command to stay the
proceedings at law.